On 18thJanuary 2021, Down Under Pty Ltd("DU"), a large seller and distributor of bakeryproducts and ingredients based in Sydney, entered into a sale and purchase contract of 2,300 packages of"Uncle Roger'sKayaJam"with a manufacturer based in Singapore, Jim & Jam Pte Ltd (Jim & Jam). The contract was based on FOB terms at the price of US$30,000.

Following this, on 20thJanuary 2021, DU entered into a voyage charter party with ForeverFriendship Pte Ltd ("Forever Friendship") for a shipForever Harmonyto carry these 2,300packages of "Uncle Roger's Kaya Jam" from Singapore to Sydney. The charter partycontained a"LawandJurisdiction"clause which states:"This charter party shall be governed by Australian law. Any dispute arising out of or in connection with this charter party, including any question regarding its existence, validity or termination, shall be referred toand finally resolved by a court in Australia".However, Forever Friendship has never been a true owner of the shipForever Harmony. Instead, Forever Friendship acquired the ship through a three-year time charter party with Bright Fortune Limited ("Bright Fortune"), aship-owning company based in the United Kingdom. The time charter party betweenForever Friendship and Bright Fortune contained a "Law and Jurisdiction" clause as follows: "This charter party shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this charter party, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in London. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) terms current at the time when the arbitration proceedings arecommenced".

On 27thJanuary 2020, Jim & Jam delivered 2,300 packages of "Uncle Roger's Kaya Jam" tothe shipForever Harmonyat the Port of Singapore. The bills of lading dated 27thJanuary 2020 were issued and signed by the Master ofForever Harmony. Clause 1 of each bill of lading states:"Terms and conditions of the charter party dated [ ], including its jurisdiction/ arbitration clause, are incorporated into this bill of lading".In Box 4 of the bills of ladingstates: "Shipment in good order and condition. The cargo must be carried at 18.3 degree Celsius throughout".

The shipForever Harmonyarrived at the port of Sydney on 24thFebruary 2021. DU brought the bill of lading to receive the shipment. Upon examination by an authorised representativefrom DU, however, all these 2,300 packages of "Uncle Roger's Kaya Jam" were in damagedcondition. According to the joint survey reported from a surveyor jointly appointed by DUand Jim & Jam, the damage was caused by the fact that all these 2,300 packages of "Uncle Roger's Kaya Jam" were stored at the temperature of-18.3 degree Celsius throughout the voyage. This was because the Master mis-read the information on the front page of the bills of lading and the Master also mis-read the instruction sent to him by email from Jim & Jam.

DU commenced proceedings against Bright Fortune before the Federal Court of Australia. Bright Fortune, on the other hand, is seeking an anti-suit injunction before the High Court in London in an attempt to restrain DU from pursuing the claim before the Federal Court of Australia arguing that DU should participate in the arbitration in London.

Question 1

Which terms of the charter party are effectively incorporated into the bills of lading?

Question 2

Is the carrier in the factual scenario liable for the damage of the shipment?